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HomeMy WebLinkAboutR-2001-061 Charter Communications Holding Company License AgreementRESOLUTION NO. R-2001- 61 A RESOLUTION _authorizing the City Manager to execute a License Agreement with Charter Communications Holding Company, LLC, which authorizes Charter Communications Holding Company, LLC to use certain utility poles owned by the City of Yakima, Washington. WHEREAS, the City of Yakima, Washington (the "City") owns certain utility poles as part of the Yakima Valley Transportation ("Y.V.T.") Company system; and WHEREAS, Charter Communications Holding Company, LLC ("Charter") has requested permission from the City, under a License Agreement, to place certain lines, attachments and apparatus on said utility poles; and WHEREAS, said License Agreement grants authority to Charter to place said lines, attachments and apparatus on said utility poles for the limited purpose of furnishing telecommunications and/or cable television service to its subscribers; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute the attached License Agreement with Charter Communications Holding Company LLC, which authorizes Charter Communications Holding Company, LLC to use certain utility poles owned by the City of Yakima, Washington. ADOPTED BY THE CITY COUNCIL this L2 day of PJL ATTEST: City Clerk , 2001. Mary Place, Mayor LICENSE AGREEMENT LICENSOR: City of Yakima, a Washington municipal corporation LICENSEE: Charter Communications Holding Company, L.L.C. LEGAL DESCRIPTION (abbreviated): Certain utility poles owned by the City of Yakima as part of the Yakima Interurban Lines system THIS AGREEMENT is made this `J day of eg I L_ , 2001, by and between the City of Yakima, a Washington municipal corporation, hereinafter referred to as "LICENSOR" and Charter Communications Holding Company, L.L.C., hereinafter referred to as "LICENSEE". In consideration of the mutual promises and covenants contained in this Agreement, the parties hereto agree as follows: 1. Grant of License. LICENSOR hereby grants to LICENSEE a license to use, subject to all of the terms and conditions of this Agreement, the following -described real property located in Yakima County, Washington, to -wit: That portion of the Yakima Valley Transportation (Y.V.T.) Company corridor owned by the City of Yakima (containing 80 electric power poles), and bounded by the following described termini: Commencing at the centerline intersection of North 6th Avenue and the Y.V.T. Main Track in the South Half of Section 12, Township 13 North, Range 18 East, W.M.; thence running north along the centerline of said Y.V.T. Main Track 146 feet to the point of beginning; thence continuing north along said centerline to a point that is 400 feet south of the centerline of Southern Avenue in the City of Selah, said point being in the Southeast Quarter of Section 2, Township 13 North, Range 18 East, W.M. The above-described real property may be used by LICENSEE solely for the purpose of placing certain lines, attachments and apparatus on certain utility poles of LICENSOR for the limited purpose of furnishing telecommunications or cable television service in compliance with any and all local, state or federal regulations, and for incidental uses relating to such purposes. 2. Scope of Agreement. 1. This Agreement shall be non-exclusive and is subject to existing agreements by LICENSOR for use of its poles. Page 1 of 7 2. Neither LICENSOR'S right to maintain it poles nor its right to operate its facilities in such a manner as to best enable it to fulfill its own service requirements shall be in any manner limited by this Agreement. 3. All existing LICENSEE pole contacts on LICENSOR -owned poles, whether covered by previous agreements or not, shall be covered by this Agreement. 4. LICENSOR does not warrant or assure to LICENSEE any right-of-way privilege or easement; and if LICENSEE shall at any time be prevented from placing or maintaining its attachments to any LICENSOR -owned pole, no liability shall attach to LICENSOR. 3. Construction Requirements. 1. LICENSEE shall obtain all necessary construction peaiiits prior to the initiation of any attachment project involving LICENSOR -owned poles. Upon completion of any attachment project, LICENSEE shall provide LICENSOR written notification that such attachment project is complete and complies with said construction pniit. 2. LICENSEE, in accordance with applicable national, state and local safety requirements, shall at all times employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. LICENSEE'S facilities in, over, under and upon the streets, sidewalks, alleys, public rights-of-way or places of a license or lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition in good order and repair at LICENSEE'S sole expense. 3. LICENSEE, at its sole expense, shall install guys necessary to support the strain imposed on any LICENSOR -owned pole by the installation of its facilities. When existing anchors are adequate in size and strength to support LICENSEE'S facilities, LICENSEE may attach its guys thereto. When existing anchors are not of adequate size and/or strength to support LICENSEE'S facilities, LICESEE shall, at its sole expense, install new anchors adequate in size and strength to support its facilities. 4. LICENSOR may, as pole owner, deny access to any specific LICENSOR -owned pole if a proposed attachment project will, in the sole opinion of LICENSOR, result in safety, reliability and/or generally accepted engineering standards not being met. Page 2 of 7 5. In any instance where LICENSEE'S facilities are installed contrary to the Electric Construction Code of the State of Washington or LICENSOR'S standard practices and specifications, LICENSEE shall, at its sole expense and within thirty (30) days following written notice from LICENSOR, change, improve or renew its installed equipment in such manner as LICENSOR may direct. If violation of any conditions applicable to such installation is observed by LICENSOR, LICENSOR reserves the right to stop such installation immediately and require correction of such violation before any part of such installation is continued. 6. LICENSEE shall bear all costs associated with contacting any LICENSOR -owned pole. If it is necessary at any time for LICENSOR to perform any work on LICENSOR -owned poles in order to provide contact space, such work may be performed only at the availability of LICENSOR crews within said crews regular work hours. Any work performed by LICENSOR crews outside regular work hours shall be billed at the standard overtime rate and shall be paid by LICENSEE. 7. Nothing in this Agreement shall be construed to compel LICENSOR to maintain any of its poles for a period longer than is necessary for its own service requirements. In the event LICENSOR deteiniines to discontinue use of any of its poles and/or to remove, relocate and/or to retire any of its poles, it shall send written notice to that effect to LICENSEE and LICENSEE shall remove its attachments and/or facilities from such poles within sixty (60) days after receiving such notice, or within such shorter period of time required in case of emergency. 4. Rental Fee. 1. Throughout the term of this Agreement, LICENSEE shall pay to LICENSOR a rental fee for each pole contact on LICENSOR -owned poles. 2. On or about January 1 of each year throughout the term of this Agreement, LICENSOR, in conjunction with LICENSEE, shall determine the total number of LICENSEE'S pole contacts on LICENSOR -owned poles as of the preceding day. 3. As of the effective date of this Agreement, the rental fee shall be $15.00 per year per pole contact for the first year of the Lease term. In succeeding years, the rental amount shall be adjusted annually on each succeeding anniversary of the Effective Date based upon the percentage change in the Consumer Price Index, all in accordance with the following formula: Page 3 of 7 Annual rent = $ x Anniversary Date CPI Effective Date CPI This formula shall be applied using the following definitions: "CPI" means the Consumer Price Index published by the Bureau of Labor Statistics of the U. S. Department of labor for All Urban Consumers (CPI -U), U. S. City Average for All Items, with a reference base period of 1982-84 = 100. "Anniversary Date CPI" means the latest available monthly CPI as of each succeeding anniversary of the Effective Date of this Lease. "Effective Date CPI" means the latest available monthly CPI as of the Effective Date of this Lease. In the event that the U. S. government ceases to publish the CPI on a 1982-84 = 100 reference base period, the parties to this Lease will convert all index values to the currently published standard reference base period in accordance with conversion factors provided by the U. S. Department of Labor, Bureau of Labor Statistics. If publication of the CPI shall be discontinued, the parties shall thereafter accept a comparable national average index on the cost of living, as computed and published by an agency of the United States, or a responsible financial periodical of recognized authority selected by the parties. If a correction is made to previously published CPI data, the corrected data shall be used prospectively. Annual rent during the additional twenty (20) year option period shall be computed and adjusted in accordance with the CPI ratio formula set forth above, but in no event shall the rent be less than $15.00 per year per pole contact, unless otherwise agreed to by the parties. 4. Said rental fee shall be paid by LICENSEE on an annual basis, said payment to be received by LICENSOR not later than February 1 each year throughout the term of this Agreement. 5. Any rental fees owing pursuant to this Agreement which remain unpaid more than ten (10) days after the dates specified in this Agreement shall be deemed delinquent and shall thereafter accrue interest at twelve (12) percent per annum or two (2) percent above prime lending rate as quoted by major Seattle banks, whichever is greater. 5. Term of Agreement. This Agreement shall continue in force and effect from year to year unless or until terminated by either of the parties to this Agreement giving written notice to the other party of intention to so terminate. Such Notice of Termination shall be given to the Page4of7 other party not less than one hundred eighty (180) days prior to the date specified in such notice for the date of termination. This Agreement shall absolutely end on the giving of such notice. Upon termination of this Agreement, LICENSEE shall remove its attachments from all LICENSOR -owned poles within one hundred eighty (180) days after the effective date of such termination. Should LICENSEE fail to remove its attachments from LICENSOR -owned poles within the time period set forth in this Agreement, LICENSOR may do such work and LICENSEE shall pay LICENSOR for any and all costs associated with such work. 6. Indemnification. LICENSEE shall protect, defend, indemnify, and hold LICENSOR, and its agents and employees, harmless from and against any and all claims, lawsuits, damages, and liabilities for personal injuries, property damage, or for loss of life or property resulting therefrom, which in any way arise from or are connected to or related to the condition or use of the real property covered by this License Agreement, or any means of ingress to or egress from said real and personal property, except liability for personal injuries, property damages, or loss of life or property caused solely by the negligence of LICENSOR. 7. LICENSOR'S Title. LICENSEE acknowledges the legal fee title of LICENSOR to the above-described real property and agrees never to deny such title or to claim title in LICENSEE'S name. LICENSEE expressly agrees that it does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the above-described real property of LICENSOR, by virtue of the rights granted under this License Agreement, LICENSEE'S occupancy or use under this Agreement, or any other basis. 8. Notices. Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by registered or certified mail, postage prepaid, if sent to the party, or hand delivered to the party, at the following addresses: LICENSOR LICENSEE City of Yakima Attn: Telecommunications Division Manager 124 South 2nd Street Yakima, WA 98901 Charter Communications 1005 N. 16th Avenue Yakima, WA 98902 Page 5 of 7 9. Assignment or Sublicense. No assignment or other transfer of the license granted under this Agreement, or any interest in such license, and no sublicense for any purpose shall be made or granted by LICENSEE without the express, prior, and written consent of LICENSOR. 10. Liens and Encumbrances. LICENSEE shall not create nor allow to be created any lien or encumbrance, including, without limitation, tax liens, mechanics liens or other liens or encumbrances with respect to work performed or equipment furnished, in connection with the installation, repair, maintenance or operation of LICENSEE'S facilities on LICENSOR -owned poles. 11. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. 12. Severability. In the event that any one or more of the clauses, covenants or provisions contained in this Agreement should be held to be unenforceable under any federal, state or local law, statute, code, administrative or regulatory rule, such invalidity or unenforceability shall not affect the remainder of this Agreement, witch shall remain in full force and effect. 13. Failure to Enforce. LICENSEE shall not be relieved of any of its obligations to comply promptly with any provision of this Agreement by reason of failure of LICENSOR to enforce prompt compliance, and LICENSOR'S failure to enforce shall not constitute a waiver of rights or acquiescence in LICENSEE'S conduct. 14. License Agreement Subject to Franchise. As additional and supplementary provisions, LICENSOR shall comply with all tern's, conditions, requirements, and provisions of City of Yakima Cable Television Franchise Ordinance No. 93-115, as amended by City of Yakima Ordinance No. 97-40, No. 98-30, No. 99-09, No. 99-31, and No. 2000-24 (hereafter referred to as the "Franchise") including, but not limited to, all construction and alteration, non-interference, consistency with designated use, restoration, and access through private property provisions as described in Section 3 of the Franchise, all remedies for franchise violations, enforcement, and compliance with laws provisions as described in Section 7 of the Franchise, and all Page 6 of 7 indemnification and insurance provisions as described in Section 11 of the Franchise, as the Franchise currently exists or is hereafter amended, altered or changed. IN WITNESS WHEREOF, each party to this Agreement has caused it to be executed at Yakima, Washington on the date indicated below. CITY OF Y AKIMA By: s R. A. Zais, Jr. City Manager Date: 21/44 ATTEST: 9 City Clerk Contract No. 2001-38 Resolution No. R-2001-61 STATE OF WASHINGTON ) )ss. County of Yakima CHARTER COMMUNICATIONS HOLDING COMPANY, LLC By: Its: Date: I certify that I know or have satisfactory evidence that R. A. ZAIS, JR., is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as City Manager of the City of Yakima to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: Api, L-11 ZOO 1 v(AH J, :4!,('/ ossioti O NOTARY PUBLIC a CH 30 .15C,45 VASO / acza.— Print Name: I • /''toor-o NOTARY PUBLIC in and for the State of Washington, residing at `lzkima . My commission expires: 3/aoloy . Page 7 of 7 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting Of April 3, 2000 ITEM TITLE: A resolution authorizing the City Manager to execute a License Agreement with Charter Communications Holding Company, LLC authorizing Charter Communications Holding Company, LLC to use certain utility poles owned by the City of Yakima for the purpose of placing certain lines, attachments and apparatus on said utility poles for the limited purpose of furnishing telecommunications and/or cable television service. SUBMITTED BY: 41 Cook, Director, Community and Economic Development Department CONTACT PERSON/TELEPHONE: Randy Beehler, Telecommunications Division Manager, 575-6092 SUMMARY EXPLANATION: Charter Communications Holding Company, LLC ("Charter") has requested permission from the City of Yakima (the "City") to utilize certain utility poles owned by the City as part of the Yakima Valley Transportation ("Y.V.T.") Company system. Charter proposes to utilize said utility poles to improve its ability to provide telecommunications and cable television service to the Selah area. Charter proposes to attach its fiber facilities to City -owned utility poles along the Y.V.T. corridor between Yakima and the Selah area. Charter would pay the City an annual rental fee for each City -owned utility pole utilized in routing its fiber facilities along the Y.V.T. corridor. The attached License Agreement would grant Charter the authority to utilize City -owned utility poles within the Y.V.T. corridor and set terms and conditions for such use. Resolution X Ordinance Other (specify) Contract X Mail to (name & address) Phone: Funding Source APPROVAL FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Approve resolution. BOARD/COMMISSION RECOMMENDATION: N/A COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2001-61 ITEM NO. 8 MEMORANDUM To: Honorable Mayor Mary Place and City Council Members From: Randy Beehler, Telecommunications Division Manager Date: 4-3-01 Subject: License Agreement with Charter Conununications re: use of City -owned utility poles Honorable Mayor and Council Members, Attached is a revised License Agreement (the "Agreement") between the City of Yakima and Charter Communications Holding Company, LLC ("Charter") re: use of certain utility poles owned by the City. A previous version of the License Agreement was distributed to Council members on March 29, 2001. The attached revised Agreement contains additional provisions not found in the previous version, further clarifying Charter's obligations under the Agreement. The additional provisions are found in Section 14 of the revised Agreement. The additional provisions require that all authority granted by the Agreement and all of Charter's operations under the Agreement will be subject to the terms and conditions of the franchise (City Ordinance No. 93-115, as amended) that Charter currently operates under. Specifically, the additional provisions in Section 14 of the revised Agreement clarify that all of Charter's operations under the Agreement will be subject to the construction, franchise violation, insurance, and indemnification requirements of its franchise with the City, as well as all of the other terms and conditions of Charter's franchise with the City. Consideration of the Agreement had been included in the consent agenda for the Council's April 3, 2001 meeting. Staff recommends this matter remain as part of the April 3, 2001 consent agenda. rpb